Professor of International Human Rights and former judge in the South African Cape High Court Jeremy Sarkin deconstructed the process and effects of South Africa's internationally auded Truth and Reconciliation Commission (TRC) in yesterday's second lecture of the Fletcher School's "Law in Post-Conflict Societies" series.
According to Sarkin, international media coverage of the TRC was "superficial" and provided a broad, positive picture of the process.
But South Africans like Sarkin have a deeper understanding of the complex interplays of benefits and shortcomings of the TRC, leaving questions about to what extent truth and reconciliation were actually achieved.
"Why does a transitional state deal with the past?" Sarkin asked. "It is not only about the past itself but also about the future. Issues from the past will continue to haunt that particular society."
To this effect, "the TRC was meant to develop a complete picture of what happened in relation to gross human rights violations," Sarkin said. Furthermore, it focused on "what could be done in relation to restoring dignity of survivors."
Sarkin said that a truth commission focusing on reconciliation and granting amnesty to perpetrators of politically motivated crimes was established in South Africa instead of a model designed solely for the purpose of prosecuting those perpetrators, because politically, neither the opposition movement in the African National Congress nor the governing party could "get the upper hand" in negotiations.
The chosen form was an advantage, however, since "if you want to pursue justice, you often do damaging things in relation to finding truth and achieving reconciliation," Sarkin said. "Perpetrators don't talk if they're being prosecuted."
The TRC offered a tradeoff to perpetrators of crimes during the apartheid era: If offenders admitted to their crimes and applied for amnesty, they stood a chance of receiving that amnesty and not being prosecuted. If their crimes were uncovered and they had not applied for amnesty, however, they would be prosecuted.
Nevertheless, very few prosecutions took place, and in the cases where prosecutions were carried out, most suspected perpetrators were acquitted. Sarkin said that in the trial of the former Defense Minister Magnus Malan and 19 other government officials suspected of creating police death squads, everyone was acquitted despite overwhelming evidence against them. This trial cost a quarter of the country's criminal justice budget, he said.
Likewise, the head of a project to use chemical and biological weapons against opposition groups in South Africa was acquitted even though over 150 witnesses testified against him.
The Malan case, especially, kept thousands of perpetrators from applying for amnesty because they thought, according to Sarkin, that "even if they were prosecuted, which was not likely, then the state would not convict."
The TRC was meant to function as a carrot and stick system where full amnesty was the carrot for perpetrators and the threat of prosecution was the stick, Sarkin said.
But are any prosecutions taking place, he asked? "The short answer is no," Sarkin said.
Although the South African model is a good example of truth being linked to amnesty, "if you have the carrot, the stick has to operate, and it has to operate in the sense that there is a close relation between the commission and the prosecutors," he said.
The TRC was effective in learning the "macro" truth about how the apartheid system functioned, and in learning about high-profile "micro," or individual, cases, Sarkin said.
"But for the thousands of victims that got killed and whose bodies have never been found, there are huge gaps," he said.
"There are thousands of perpetrators who never came forward."
Sarkin has served in an advisory capacity on the truth commission in Sierra Leone.
